Citation Nr: 1307825
Decision Date: 03/08/13 Archive Date: 03/11/13
DOCKET NO. 06-34 144A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Sean A. Ravin, Attorney-at-Law
ATTORNEY FOR THE BOARD
R. Giannecchini, Counsel
INTRODUCTION
The Veteran had active military service from July 1967 to July 1971. He died in October 2005. The appellant is the Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) following a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In December 2009, the Board denied the appellant's claims for entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318, as well as entitlement to service connection for the cause of the Veteran's death. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter "Court"). In a September 2011 decision, the Court held that the appellant had not challenged the Board's disposition of her DIC claim based on 38 U.S.C.A. § 1318; as such, the Court found the claim abandoned on appeal. The Court otherwise vacated and remanded the Board's denial of the appellant's claim for service connection for the cause of the Veteran's death.
Thereafter, in a December 2011 letter, the Board notified the appellant and her attorney of the Court's decision and the opportunity to submit additional evidence in support of the claim on appeal. In response to the Board's letter, additional written argument from the appellant's attorney was received.
The Board subsequently developed the appellant's claim and obtained Veterans Health Administration (VHA) medical advisory opinions dated in May 2012 and October 2012. The Board has issued copies of both VHA opinions to the appellant and her attorney and additional argument concerning the opinions has been received and associated with the claims file.
FINDINGS OF FACT
1. The Veteran served in the Republic of Vietnam during the Vietnam War and is presumed to have been exposed to an herbicide agent.
2. The Veteran died in October 2005; according to his death certificate, the immediate cause of death was carcinoma of tongue with metastasis.
3. Medical records document the Veteran's diagnosis and treatment for malignant neoplasm of the tonsil.
4. At the time of the Veteran's death, service connection was in effect for posttraumatic stress disorder (PTSD).
5. The tongue and tonsil are anatomical parts associated with the oropharynx and are distinct from the larynx, the trachea, the bronchus, and the lung.
6. A service-connected disability was not the principal or contributory cause of the Veteran's death.
7. The disease process leading to the Veteran's death is not attributable to his active military service and it was not caused by any service-connected disability.
CONCLUSION OF LAW
Service connection for the cause of the Veteran's death is not warranted. 38 U.S.C.A. §§ 1110, 1113, 1116, 1310, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.312 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). See also DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008) (acknowledging that the plain language of section 5103A(d) specifically limits it to "claims for disability compensation," and thus it does not apply to DIC claims).
In the context of a claim for service connection for cause of death benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. See Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). Although there are particular notice obligations with respect to a claim for service connection for cause of death benefits, there is no preliminary obligation on the part of VA to conduct a "predecisional adjudication" of the claim before providing a section 5103(a)-compliant notice. Id. at 352.
Here, the RO sent the appellant a letter in November 2005 informing her of the evidence VA had received to date, the evidence VA was responsible for obtaining, and what the evidence must show to support the appellant's claim. In this regard, the RO notified the appellant that evidence needed to show that the Veteran's service-connected disability caused or contributed to his death. It does not appear that the November 2005 notice letter is technically compliant with the Court's holding in Hupp.
The Board notes that only prejudicial notice errors merit remand. Shinseki v. Sanders, 129 S. Ct. 1696, 1704-05 (2009) (holding that notice errors must be examined in the context of the facts of the particular case to determine whether they are prejudicial). A prejudicial error is one that affects the "essential fairness" of the adjudication by depriving the claimant of a "meaningful opportunity to participate effectively" in the adjudication of the claim. Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).
In the present case, any notice error based on an incomplete notice in light of the Court's holding in Hupp did not affect the essential fairness of the adjudication. In particular, the appellant had actual knowledge of the Veteran's service-connected disability, PTSD. In her VA Form 9 (Appeal to Board of Veterans' Appeals) dated in November 2006, the appellant reported that the Veteran had been rated 100% for his PTSD for over seven years. Furthermore, neither the appellant nor her attorney has alleged the appellant was prejudiced by VA's oversight in not informing her about how VA assigns effective dates and disability evaluations. Shinseki, supra
Otherwise, there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The RO has obtained the Veteran's service treatment records and pertinent VA treatment records. The appellant has not identified any private medical records associated with the Veteran's treatment that would be pertinent to her claim. Additionally, as noted above, VHA opinions have been obtained and the Board has issued copies of both opinions to the appellant and her attorney. The appellant and her attorney have also provided written argument in support of the claim on appeal.
Under these circumstances, the Board finds that VA has complied with the duties to notify and assist required by the VCAA.
II. Analysis
To establish service connection for the cause of a veteran's death, the evidence must show that a service-connected disability was either the principal (primary) or a contributory cause of death. 38 C.F.R. § 3.312(a). A service-connected disability will be considered the principal (primary) cause of death when such disability-singly or jointly with some other condition-was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b).
A contributory cause of death is inherently one not related to the principal cause. In determining whether a service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it "casually shared" in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1).
The law also recognizes that certain primary causes of death are by their very nature so overwhelming that eventual death can be anticipated irrespective of coexisting conditions. But even in those cases, VA considers whether there may be a "reasonable basis" for finding that a service-connected condition was of "such severity" to have a "material influence in accelerating death." In such a situation, however, it is not generally reasonable to hold that a service-connected condition accelerated death unless the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. 38 C.F.R. § 3.312(c)(4).
As noted above, the Veteran died in October 2005. During his lifetime, service connection was in effect for PTSD. The disability was rated as 100 percent disabling at the time of his death. Service connection had not been established for any other disability.
The Veteran's death certificate lists only the immediate cause of death, which is noted as carcinoma of the tongue with metastasis. The Board notes that the Veteran's treatment records indicate that he actually suffered from cancer of the tonsil. In light of this discrepancy, the Board will address both potential causes of death in its decision. With that said, the appellant does not specifically contend that the Veteran's service-connected PTSD caused or contributed to his death. Rather, she argues that the Veteran's cancer of the tonsil caused or contributed to his death.
If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116(a); 38 C.F.R. § 3.309(e). Of relevance in the present case, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) which become manifest to a degree of disability of 10 percent or more, are listed among the diseases presumed to be related to herbicide exposure. 38 U.S.C.A. § 1116(a)(2)(F).
Regardless of whether a claimed disability is recognized under 38 U.S.C.A. § 1116, a claimant is not precluded from presenting evidence that a disability was due to or the result of herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999).
A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, is presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. Here, the Veteran served in Vietnam between January 1962 and May 1975. As such, he is presumed to have been exposed to an herbicide agent during service.
The Board notes that there is no evidence that the Veteran's cancer of the tonsil (or tongue) was incurred in or aggravated by his active military service. Service treatment records are void of any complaints of or treatment for any condition related to the Veteran's tonsils or tongue. Additionally, in its September 2011 decision, the Court noted that, "[T]he appellant can attempt to demonstrate that the [V]eteran's cancer was related to exposure to herbicide on a direct basis." A review of the claims file does not reflect medical evidence suggesting that the Veteran's tonsil (or tongue) cancer is related to his military service, to include his exposure to Agent Orange. Combee, McCartt, supra.
The appellant has specifically argued that the Veteran's tonsil (or tongue) cancer fits within the category of respiratory cancers-specifically, cancer of the larynx-that are presumed by law to be related to herbicide exposure. On that basis, service connection for the cause of the Veteran's death should be granted.
In a March 2012 statement, the appellant's attorney made an argument to the effect that the pharynx (inclusive of the tonsils and the tongue) is recognized in medical literature as part of the respiratory system, and hence cancer of the tonsil or tongue should be subject to presumptive service connection based on herbicide agent exposure.
With regard to the VHA advisory opinions, the Board has received a medical opinion from D.K, a medical doctor and section chief of otolaryngology at the VA Medical Center (VAMC) in Manhattan, New York. In his May 2012 opinion, Dr. K noted that the issue was whether the tonsil (oropharynx) was part of the larynx. He described the Veteran as having been diagnosed with T2N2b squamous cell carcinoma of the left tonsil. Dr. K noted the following,
The tonsil is part of the oropharynx which is a staging anatomic location distinct from the larynx. However, the oropharynx, hypopharynx, and larynx are contiguous parts of the upper aerodigestive tract. Extensive cancers can spread from one site to the other.
Therefore, in my opinion, because of the proximity and because of the cell type (squamous cell carcinoma) that is common between the oropharynx and larynx, the [Veteran] ought to be compensated.
In light of Dr. K's opinion, the Board requested a second advisory medical opinion. At that time, the appellant and her attorney argued that the medical opinion from Dr. K resolved the issue of medical complexity requiring an opinion, and that the Board was seeking to further develop the claim for the purpose of obtaining unfavorable medical evidence.
Subsequently, the Board received a medical opinion from M.S.P., a medical doctor and chief of otolaryngology at the VAMC in Dayton, Ohio. In his October 2012 opinion, Dr. P noted the Veteran's medical history with respect to the squamous cell carcinoma of the left tonsil. He additionally noted the following,
The upper aerodigestive tract is organized into several major sites that are subdivided into anatomic subsites. (Committee for Head and Neck Surgery and Oncology, Pocket Guide to Neck Dissection, Classification and Staging of Head and Neck Cancer. Alexandria, VA: American Academy of Otolaryngology-Head and Neck Surgery Foundation, Inc., 3rd Edition 2008). The major sites include: the oral cavity, the oropharynx, the hypopharynx, the larynx, the nasopharynx, and nose and paranasal sinuses.
The oropharynx includes the tonsils, base of tongue, soft palate, and pharyngeal walls. The larynx is a distinct and separate anatomic site from the oropharynx and includes the epiglottis, the false vocal chords, the arytenoid cartilages, and the aryepiglottic folds. The trachea, bronchus and lung are part of the lower respiratory system.
Dr. P also noted that,
The National Comprehensive Cancer Network guide for treatment of Head and Neck Cancer (widely accepted guideline) breaks out treatment for cancer of the oropharynx (tonsil, base of tongue, posterior pharyngeal wall, soft palate) from cancer of the larynx (separate guidelines).
Dr. P commented that the Veteran had been diagnosed with a cancer of the tonsil metastatic to lymph nodes in the neck, and to distant sites within the body. He further commented that at no time was the Veteran ever diagnosed with a primary tumor of the larynx, trachea, bronchus or lungs. Dr. P opined the following,
It is my medical opinion that based upon generally accepted definitions of anatomical parts, that the tongue and tonsil are indeed anatomical parts which are distinct from the larynx, the trachea, the bronchus and the lung, and that this Veteran's tumor arose within the tonsil, an anatomic site distinct and separate from these.
Following receipt of a copy of Dr. P's opinion, the appellant's attorney submitted additional argument dated in January 2013. In particular, the appellant's attorney argued that the opinion of Dr. K was more probative than that of Dr. P, that Dr. P failed to opine as to whether it was at least as likely as not that the Veteran's cancer of the tonsils was caused by or related to respiratory cancer, and that the Board was seeking to obtain unfavorable medical evidence by requesting a second advisory medical opinion.
With regard to seeking a second advisory medical opinion, the Board acknowledges the United States Court of Appeals for Veterans Claims (Court) holding that it is not permissible for VA to undertake additional development if the purpose of that development is to obtain evidence against an appellant's case. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003); Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). However, the Court later distinguished Mariano, holding that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).
With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).
In the present case, the Board recognizes that the applicable regulation does not leave ambiguous the question of the scope of the respiratory system for which the presumption for respiratory cancers attaches. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Rather, the regulation explicitly circumscribes the scope of the respiratory system to which the presumption attaches, listing "Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)." By specifying those elements of the respiratory system for which the presumption is applicable, the regulation clarifies that other anatomical parts which may be conceivably considered part of the respiratory system are not so considered for purposes of the presumption based on herbicide agent exposure. See also National Academy of Sciences (NAS), Veterans and Agent Orange: Update 2010 (September 2011) (NAS found inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and various cancers, to include cancer of the oral cavity (including lips and tongue) and cancer of the pharynx (including tonsils)).
With respect to the advisory medical opinions from Dr. K and Dr. P, neither physician identified the tonsil or tongue as an anatomical part associated with the larynx, lung, bronchus, or trachea. On the contrary, both doctors identified the tonsil as an anatomical part associated with the oropharynx. Additionally, Dr. P identified the tongue as also being anatomically associated with the oropharynx. Both doctors also indentified the larynx as being a distinct and separate anatomic site from the oropharynx. Therefore, based on the opinions of both medical doctors, the Board concludes that the tonsil and tongue are not anatomical parts associated with the larynx, or with the lung, bronchus, or trachea. On this basis alone, the Board concludes that the Veteran's cancer of the tonsil (or tongue) is not one of the respiratory cancers presumed related to herbicide exposure under 38 U.S.C.A. § 1116(a). See also 38 C.F.R. § 3.309(e).
In support of her claim, the appellant and her attorney have submitted an October 2009 Board decision which granted service connection based on the Board's finding at that time that "throat cancer and squamous cell carcinoma of the left tongue base and tonsil" was a respiratory cancer presumptively related to exposure to herbicides in Vietnam. This decision is signed by a Board employee other than the undersigned Veterans Law Judge. With respect to this submission, the regulations make clear that decisions of the Board are not binding as to other Veterans. 38 C.F.R. § 20.1303 (2012). Although the Board strives for consistency in issuing its decisions, previously-issued Board decisions will be considered binding only with regard to the specific case decided. Id. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to one another, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law.
Thus, without speculating as to the reasons for the Board's decision in October 2009, here, as noted above, the tonsil and the tongue have been identified through competent medical evidence as anatomical parts not associated with the larynx, lung, bronchus, or trachea. The scope of the respiratory system for which the presumption for respiratory cancers attaches is clear and unambiguous, and is further supported by the NAS finding that there is a lack of sufficient evidence linking cancer of the tonsil or tongue with herbicide exposure. The close proximity of the oropharynx and larynx or the type of the Veteran's cancer, points of discussion from Dr. K, do not overcome the fact that the Veteran simply did not have a presumptive respiratory cancer recognized under the law. Thus, notwithstanding the October 2009 Board decision, or the opinion of Dr. K for that matter, the Veteran's cancer of the tonsil (or tongue) is not one of the respiratory cancers presumed related to herbicide exposure under 38 U.S.C.A. § 1116(a) and 38 C.F.R. § 3.309(e).
Therefore, while the Veteran is presumed to have been exposed to an herbicide agent in Vietnam, his cancer of the tonsil (or tongue) is not presumed to be related to herbicide exposure due to the fact that neither cancer is a listed disease recognized by law as being presumptively related to such exposure. 38 U.S.C.A. § 1116(a)(2)(F); 38 C.F.R. § 3.309(e). Otherwise, there is no evidence that the Veteran's tonsil (or tongue) cancer was incurred or aggravated during military service, or is related to military service, to include exposure to Agent Orange. Additionally, the evidence of record does not reflect that the Veteran's service-connected PTSD was either a primary or a contributory cause of his death.
Therefore, while sympathetic with the appellant's claim, entitlement to service connection for the cause of the Veteran's death must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against the appellant's claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.312.
ORDER
Service connection for the cause of the Veteran's death is denied.
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JAMES A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs